PETER ASH and REPATRIATION COMMISSION
[2009] AATA 326
•8 May 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 326
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2006/2596
VETERANS’ APPEALS DIVISION ) Re PETER ASH Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms Robin Hunt, Senior Member
Dr Maxwell Thorpe, MemberDate8 May 2009
PlaceSydney
Decision The tribunal sets aside the decision under review and substitutes a decision that the applicant satisfies all the requirements of subsection 24(1) of the Veterans’ Entitlements Act 1986 for receipt of the special rate of pension.
...................[Sgd]...................
Ms Robin Hunt
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – pension – special rate – “alone” test – war-caused psychiatric condition accepted – applicant’s war-caused psychiatric incapacity alone prevents him from continuing to undertake remunerative work he had been undertaking – shoulder restrictions immaterial to condition that prevent the veteran from working – decision under review set aside – all requirements of s 24(1) of the Veterans’ Entitlements Act 1986 satisfied.
Veterans’ Entitlements Act 1986 ss 13(1)(b), 13(1)(d), 15(1), 19(9), 22, 24(1), 24(2), 28
Baljas v Repatriation Commission [2009] FCA 171
Banovich v Repatriation Commission(1986) 69 ALR 395
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
Fox v Repatriation Commission (1997) 45 ALD 317
Leane v Repatriation Commission (2004) 81 ALD 625
Magill v Repatriation Commission [2002] FCA 744
Peacock and Repatriation Commission (2004) 40 AAR 143
Repatriation Commission v Hayes (1982) 64 FLR 423
Repatriation Commission v Hendy (2002) 76 ALD 47
Sheehy v Repatriation Commission(1996) 66 FCR 569
Starcevich v Repatriation Commission (1987) 18 FCR 221
REASONS FOR DECISION
8 May 2009 Ms Robin Hunt, Senior Member
Dr Maxwell Thorpe, Memberintroduction
1. Mr Ash seeks review of a decision refusing to increase his disability pension to the special rate. The reviewable decision is that Mr Ash does not meet all the requirements under section 24 of the Veterans’ Entitlements Act 1986 (‘the Act’) and, in particular, his incapacity to work is not caused by accepted injuries or diseases alone.
2. He was born on 12 October 1944, making him under the age of 65 when he applied for an increase in his pension. The parties agree Mr Ash meets preliminary requirements for disability pension at the special rate. He served in the Australian Army and rendered eligible service and operational service in accordance with the Act. From 3 December 1964 to 6 June 1965 and again, from 14 September 1965 to 8 September 1966, Mr Ash rendered operational service. His period of service from 7 December 1972 to 22 August 1985 is recognised as eligible defence service.
3. Mr Ash suffered injuries during service and the respondent accepts that he is entitled to receive a pension in respect to cervical spondylosis, lumbar spondylosis, post traumatic stress disorder (‘PTSD’), chronic obstructive airways disease, grover’s disease, bilateral sensorineural hearing loss and major depression. The respondent’s records show that the Commission accepted Mr Ash’s claim for major depression on 29 September 2005, consequent on his application for an increase in his pension made on 2 August 2005. He was already receiving 100% of the general rate of pension and continued to receive this rate after acceptance of the further condition in September 2005.
4. On 27 March 2006, Mr Ash again lodged an application for increased pension. The Commission declined to increase his pension, on 21 April 2006, and he continued to receive 100% of the general rate. On 1 November 2006, the Veterans’ Review Board (‘the Board’) reviewed that decision and decided Mr Ash was not entitled to the special rate which he was seeking. This is the decision being reviewed by the tribunal.
issue
5. The issue for the tribunal to decide is whether Mr Ash is entitled to payment of pension at the special rate. This involves consideration of several tests for eligibility set out under section 24 of the Act.
consideration
6. The Commonwealth is liable to pay disability pension to Mr Ash pursuant to subparagraphs 13(1)(b) and (d) of the Act, as the Commission is satisfied that Mr Ash is a veteran who is incapacitated by a war-caused injury or disease. Pursuant to subsection 15(1), a veteran who is in receipt of a pension may apply for an increase in the rate of the pension on the ground that his incapacity has increased since the rate of the pension was assessed or last assessed. Mr Ash meets these preliminary requirements.
7. Section 19 deals with the manner of determination of claims and applications. The ‘assessment period’ is defined in subsection 19(9) of the Act and, “in relation to a claim or application relating to a pension, means the period starting on the application day and ending when the claim or application is determined”. The ‘application day’ is also defined in subsection 19(9) and usually is “the day on which the claim or application was received at an office of the Department in Australia”.
8. Section 22 prescribes the general rate of pension and the extreme disablement adjustment. Section 24 deals with circumstances in which the special rate of pension is applicable. Mr Ash seeks the special rate and claims he satisfies section 24. The section provides, in part:
(1) This section applies to a veteran if:
(aa) the veteran has made .. an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) …; and
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
…
(2) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-
caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i) the veteran has ceased to engage in remunerative work for
reasons other than his or her incapacity from that war-
caused injury or war-caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in
remunerative work for some other reason; and
(b) where a veteran, not being a veteran who has attained the age of 65
years, who has not been engaged in remunerative work satisfies the
Commission that he or she has been genuinely seeking to engage in
remunerative work, that he or she would, but for that incapacity, be
continuing so to seek to engage in remunerative work and that that
incapacity is the substantial cause of his or her inability to obtain
remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
9. Mr Ash’s degree of incapacity from a war-caused injury or disease was at least 70% under a determination that was in force at the time of application and is still in force. He was born on 12 October 1944 and was not yet 65 when he made the application for an increase in his pension on 27 March 2006. There is no dispute about these matters and we find he satisfies subparagraphs 24(1)(aa), (aab) and (a). Mr Ash also comes within subparagraph 24(2)(b) provisions. We must decide if he satisfies the remaining requirements of section 24.
mr ash’s case
10. In written facts, issues and contentions, Mr Ash claimed entitlement to special rate in accordance with subparagraphs 24(1)(b) and 24(1)(c) of the Act. Counsel for Mr Ash argued that Mr Ash satisfied subparagraph 24(1)(c) by virtue of subparagraph 24(2)(b), although he became unemployed for reasons that had nothing to do with his pensionable conditions.
the respondent’s case
11. The Commission’s main argument was that, whether or not Mr Ash was unable to work due to his war-caused injuries, there were other factors partly responsible for his ceasing to engage in remunerative work. Counsel for the Commission argued that Mr Ash therefore was not, by reason of his war-caused incapacity alone, prevented from continuing to undertake remunerative work that he had been undertaking. The Commission did not resist the psychiatric case put for Mr Ash but put that, where there was a diminution of capacity for employment from other factors, we had to take these factors into account before finding that accepted war-caused conditions alone prevented a veteran from working. Counsel for the Commission suggested other reasons affecting employment capacity might be medical or non-medical, relying on the case of Flentjar v Repatriation Commission (1997) 48 ALD 1 (‘Flentjar’).
the “alone” test
12. For Mr Ash to be eligible for special rate, he must satisfy both subparagraph 24(1)(b) and 24(1)(c). That is, pursuant to subparagraph 24(1)(b), we must determine whether Mr Ash’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. Then we must decide whether Mr Ash is prevented, by reason of a war-caused injury or disease alone, from continuing to undertake remunerative work that he was undertaking: subparagraph 24(1)(c). The ‘alone test’, in relation to subparagraph 24(1)(c) is modified in some cases by what are known as ameliorative provisions in subsection 24(2).
13. There are many cases where the existence of a non war-caused disability or illness which affects employability of a veteran disqualifies that person from receipt of special rate despite undoubted war-caused disabilities. As Gray J of the Federal Court confirmed in the case of Baljas v Repatriation Commission [2009] FCA 171 (‘Baljas’), if a veteran is incapacitated or prevented from engaging in remunerative work for some reason other than the war-caused incapacity, the “alone” test will not be satisfied.
14. The Full Federal Court in Flentjar, at 4-5, pointed out that war-caused injury or war-caused disease must be the only factor preventing him from continuing to undertake that work. Also see Nicholson J in Forbes v Repatriation Commission (2000) 101 FCR 50. For example, if Mr Ash’s inability to continue in remunerative work is affected by other health problems or due to unavailability of work, economic factors or other reasons unrelated to his war-caused incapacity, he will not have demonstrated that he is unable to continue remunerative work solely due to war-caused incapacity.
15. In forming a view on whether Mr Ash satisfies section 24 we have taken account of his own evidence as well as various medical opinions about his situation. Mr Ash told us he could not work at a great many occupations which we have described later in these reasons in connection with his efforts to find work. Generally, Mr Ash’s evidence was to the effect that he thought he had physical limitations which prevented his working but he also admitted to the adverse effects of his PTSD and depression. His psychiatric conditions of PTSD and major depression are accepted as war-caused as well as physical afflictions.
medical evidence
16. In connection with his pension claim, Mr Ash was examined by a number of medical practitioners who reported on his mental state and his physical problems. The reports furnished by medical experts for both parties all basically agreed that Mr Ash was unfit for work. Most of the doctors stated he could not work at all and some specified that he could not work for periods aggregating more than 8 hours per week, which is part of the test in subparagraph 24(1)(b). Dr Thomas Rosenthal and Dr Robin Chase both thought that Mr Ash could not work because of his war-caused injuries, psychiatric and physical, whether or not he had other unrelated injuries or conditions. Dr Anthony Dinnen, psychiatrist, holds the opinion that Mr Ash cannot work solely because of his accepted war-caused psychiatric injuries. Another psychiatrist, Dr John Albert Roberts, who saw Mr Ash for the respondent, gave the opinion that Mr Ash could not work but only because of physical difficulties.
17. Dr Dinnen noted in his report of 1 November 2007 that a Dr Burek had previously arranged for Mr Ash’s admission for psychiatric treatment in 2005. He noted that Dr Burek concluded Mr Ash had worsening major depression and PTSD which had been evolving for forty years. Dr Burek reported how Mr Ash had gone back to Vietnam to “put his ghost to rest” but instead had more prominent symptoms. Dr Dinnen also referred to a letter from Dr Baker in November 2005 reviewing Mr Ash’s progress as his patient over five years and noted his mental state had not improved but declined after his return from Vietnam in 2004. As time went by, Mr Ash had little access to psychiatric care in Armidale, as Dr Dinnen noted, and was managed by his general practitioner.
18. As well, Dr Dinnen looked at material furnished for the Board’s review in November 2006. The Board referred to a report from Dr Schmidtman who advised Mr Ash’s symptoms of PTSD had progressively worsened “to a point where it has affected negatively all areas of his life including work and relationships”.
19. Dr Rosenthal furnished a report on 17 April 2007 in which he detailed Mr Ash’s disabilities and history. He stated, on page 4 of his report, that Mr Ash was significantly affected by PTSD, cervical and lumbar spondylosis and chronic obstructive airways disease and that all these conditions prevented him from continuing with his normal employment. He also considered that Mr Ash was unable to work more than 8 hours per week due to his accepted conditions alone. Dr Rosenthal, on page 5 of his report, further stated there were no non-accepted conditions affecting Mr Ash’s employment and his non-accepted disabilities had nil effect on his ability to seek remunerative employment.
20. Dr Rosenthal gave oral evidence at the tribunal hearing. When Dr Rosenthal was pressed by the respondent’s counsel about his opinion that Mr Ash could not work solely due to war-caused injuries, Dr Rosenthal stated Mr Ash’s inability to get work was ‘substantially defence-related’.
21. Dr Chase, occupational physician, held a similar opinion to Dr Rosenthal. He furnished a detailed report after seeing Mr Ash in May 2007. Dr Chase concluded his report, dated 18 June 2007, with the opinion that Mr Ash was significantly disabled by his cervical and lumber spondylosis and PTSD and that these alone were sufficient to prevent his return to work. He thought Mr Ash was not capable of continuing employment in his usual field, noting Mr Ash’s roles in the Army, as a rugby coach and in the Defence Force Academy. Dr Chase further thought his disabilities would be obvious to an employer and that he was unable to work solely because of his accepted disabilities. However, Dr Chase went on to observe in answer to question 10, on page 5 of his report, that Mr Ash had other conditions which would cause him considerable difficulties engaging in paid employment, “not least the osteoarthritic changes in his left foot and the very significant pathology in both shoulders”.
22. Dr Chase furnished a second report on 31 January 2008, after reading the reports of Dr Rosenthal and of Dr Roberts. Dr Chase still held the opinion that Mr Ash was incapable of work but said he would have to defer to Dr Roberts as to psychiatric conditions. Dr Chase, nevertheless, noted Mr Ash’s social and behavioural problems. In addition, Dr Chase did not at that time have the benefit of Dr Dinnen’s assessment which was at variance with that of Dr Roberts.
23. In his report dated 30 May 2007, Dr Roberts concluded that Mr Ash was unfit for work on purely physical grounds. Dr Roberts wrote that, “assuming” Mr Ash had PTSD, which Dr Roberts volunteered that he had “not confirmed”, he considered Mr Ash’s mental state did not prevent him from working. In a second report, dated 20 June 2007, Dr Roberts considered some drug screening results but did not change his opinion. Dr Roberts supported his view by reference to the much earlier opinion of Dr Inglis Howe Synnott. However, in 2000, Dr Synnott reported that Mr Ash met diagnostic criteria for PTSD. Dr Synnott observed that Mr Ash had managed “to get on with his life” and have a career but nevertheless met criteria for PTSD.
24. We found Dr Roberts’ approach troubling as he was asked to give an opinion about whether Mr Ash could work and not equivocate about his accepted psychiatric conditions. Mr Ash’s PTSD had been an accepted condition since 29 August 1999, according to records furnished by the respondent. His war-caused major depression was accepted on 29 September 2005, with effect from 2 May 2005. The acceptance of major depression in addition to PTSD occurred well after Dr Synnott’s examination and report in 2000 when he commented that Mr Ash had coped up to that time.
25. Mr Ash did not apply for special rate until 2006. Mr Ash told us that he had been getting on with his life until he realised he was unable to find another job as time went by after being made redundant. He had been made redundant in 1999, a few months before he saw Dr Synnott in 2000, but his situation had changed by 2006, when he could no longer work. We therefore agree with Dr Dinnen that Dr Roberts’ opinion should be discounted.
26. Dr Dinnen, on 1 November 2007, gave the opinion that Mr Ash was unfit for work due to his chronic psychiatric condition. Dr Dinnen thought Mr Ash was probably suffering his accepted psychiatric condition before his redundancy. He also held the opinion that Mr Ash could not work for more than 8 hours per week because of his accepted psychiatric condition. Dr Dinnen wrote:
The diagnosis of chronic post traumatic stress disorder is unarguable in my opinion … The condition, as noted by at least one psychiatrist, has progressed over the last decade or more, to the point that it causes major impairment as can be seen from the GARP assessment which I carried out.
27. By the time of the tribunal hearing in 2009, Mr Ash was very troubled by his inability to obtain work. He told us he was still very much hoping he would find work. We formed the view, that Mr Ash’s depressed demeanour was genuine and unavoidable. After hearing Mr Ash’s oral evidence and taking into account the many medical opinions before us, we have formed the view, on balance, that Mr Ash indeed cannot work for eight hours per week in any occupation and that this is solely due to his psychiatric conditions of PTSD and depression. The long history of PTSD and worsening mental health diagnosed by Dr Synnott in 2000, and worsening by 2005 as observed by Dr Burek and Dr Baker, is borne out in the recent examination and opinion of Dr Dinnen.
28. Counsel for the Commission conceded that Mr Ash faced physical difficulties in obtaining remunerative employment which were due to his war-caused disabilities, however, it was put to us that there were a number of jobs which Mr Ash could and would have otherwise pursued but for his non-war caused shoulder condition. For example, security guard work, painting and decorating work and removing the ceiling vents or extractor fan filters. These positions involved working with his arms extended above his shoulders and the shoulder injury, in part, prevented him from engaging in remunerative work of this kind.
29. It is true that Mr Ash, under questioning, agreed that his shoulder problems might affect his ability to mow lawns and to do work which required him to raise his arms above his head but we are not sure that Mr Ash is the best person to form an opinion about what it is that prevents his obtaining and performing work. Mr Ash is still hopeful of obtaining work and has tried various situations without success. However, it is our strong view that there are no factors that prevent his working and earning income in addition to his PTSD and major depression. The shoulder disability has no bearing on his incapacity to work due to his mental incapacity. Mr Ash’s case is unlike that of cases such as Magill v Repatriation Commission[2002] FCA 744 and Baljas, because his physical disabilities do not contribute to his inability to find work despite his own perception.
30. To construe the legislation to operate so that an irrelevant disability suffered by a veteran, which has nothing to do with why he cannot work, makes him ineligible for special rate, in our view, cannot be the intention of section 24. To construe subparagraphs 24(1)(b) and (c) in such a harsh and restrictive manner would be inconsistent with the beneficial nature of the Act. While the provision has been construed strictly and unfavourably towards a veteran on many occasions, each case should be considered on its own particular facts. Mr Ash’s failed attempts to undertake physical tasks which are beyond him does not mean that he is unable to work due to physical limitations. His case is one in which he is prevented from working solely because of his accepted mental disabilities.
31. As to the appropriate approach to construction of section 24, see the remarks of the Full Federal Court in Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225 (‘Starcevich’). Fox J (Jenkinson J agreeing) said:
It is hardly necessary to say so, but the legislation should in my view be given a reasonably liberal interpretation; it has often been pointed out that it is a matter of great public importance to provide adequately for incapacitated ex-servicemen. The reasons need not be explored here. It can however be pointed out that the combined operation of pars (a) and (b) of s 24(1) is itself already very restrictive of a right to a pension.
32. As well, in Repatriation Commission v Hayes (1982) 64 FLR 423, at 426, Keely J said:
… the [precursor to the current Act] is a remedial Act and "should be construed so as to give the fullest relief which the fair meaning of its language will allow" -- per Isaacs J. in Bull v Attorney-General (NSW) (1913) 17 CLR 370, at p 384. However, that judgment made it clear in the preceding words that it did not mean "that the true signification of the provision should be strained or exceeded"… the statute “must be so construed as to give the most complete remedy which the phraseology will permit”.
(See also Creyke and Sutherland, Veterans' Entitlements Law, 2nd Edition, paragraph [2.02])
33. We are satisfied that the accepted war-caused conditions of PTSD and depression alone have prevented Mr Ash from continuing to undertake and pursue remunerative work that he had previously been undertaking. These conditions together prevent his working more than 8 hours per week in aggregate or at all, as is most recently recognised by Dr Dinnen.
34. We are satisfied Mr Ash satisfies the “alone” test and meets the criteria in subparagraph 24(1)(b). He also satisfies the “alone” test for subparagraph 24(1)(c). There are additional criteria Mr Ash must satisfy pursuant to the latter provision, which we have considered below.
what has caused mr ash’s loss of earnings?
35. Pursuant to subparagraph 24(1)(c), Mr Ash must show that by reason of incapacity of war-caused injury or disease he is prevented from continuing to undertake remunerative work that he was undertaking and is, by reason thereof, suffering a loss of salary or wages or of earnings on his own account, that he would not be suffering if free of that incapacity. In connection with this test, there are further criteria set out in subsection 24(2).
36. Subparagraph 24(2)(a) of the Act, for the purposes of subparagraph 24(1)(c), provides that the veteran will not be taken as suffering loss of salary, wages or earnings by reason of his war-caused injury or disease if he has ceased to engage in remunerative work “for reasons other than his or her incapacity from the war-caused injury or war-caused disease”. Mr Ash does not satisfy the requirement that he ceased work due to incapacity as he was asked to retire when his position was considered redundant.
37. The alternative provision contained in subparagraph 24(2)(b) is available to Mr Ash. The evidence is that
Mr Ash ceased work when he was made redundant and not because of his war-caused conditions. As he has ceased to engage in remunerative work for reasons other than his incapacity from his war-
caused injury or disease, we turn to the so-called ameliorative provision in subparagraph 24(2)(b).
38. For the purposes of subparagraph 24(1)(c) and 24(2)(b), we examined the following three questions:
·What was the remunerative work that Mr Ash had been undertaking?
·Was Mr Ash genuinely seeking to engage in remunerative employment?
·Was Mr Ash’s incapacity from PTSD and major depression the substantial cause of his inability to obtain remunerative work?
what was the remunerative work that mr ash had been undertaking?
39. For the purposes of subparagraph 24(1)(b), section 28 further provides that whether a veteran who is incapacitated from war‑caused injury or war‑caused disease, or both, is incapable of undertaking remunerative work, we must have regard to the following matters only:
(a) the vocational, trade and professional skills, qualifications and experience of the veteran;
(b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).
40. Further, in forming a view about the remunerative work which Mr Ash might reasonably undertake, we have borne in mind what the Full Federal Court said in Repatriation Commission v Hendy (2002) 76 ALD 47 at [36]. The Court said that, “(T)he requirement to consider ‘remunerative work that the veteran was undertaking’ does not mean a particular job with a particular employer but the substantive remunerative work that the veteran had undertaken in the past”.
41. The work history available to us comes from Mr Ash’s own unchallenged evidence. Mr Ash completed his schooling in 1960 one year after completing the intermediate certificate and was employed as a labourer by Armidale City Council for a few months. He then became a trainee lands inspector with the Lands Department for about 8 months, working mainly as a ‘chainsman’, before enlisting in the Australian Regular Army in April 1963. For the first 18 years of service, he was in the Engineers, training and working in explosives, mine clearance, bridge building and road construction. He served in Borneo, Vietnam, Malaya and Thailand for most of the 1960s. In about 1971, his fitness rating was downgraded due to hearing loss and he was transferred to stores and became a storeman for the last 4 or 5 years of service. He had achieved the rank of sergeant when discharged in 1985.
42. He had played in or coached combined services rugby from 1971 to 1985 and continued to coach for a time up to 1996. In the early 1970s, Mr Ash worked part-time as a bouncer, and in the mid 1970s, he obtained a heavy vehicle licence to drive trucks but did not pursue this occupation. He told us at the hearing he felt unable to drive trucks due to his nerves and did not want to injure or kill anyone. After discharge from the Army, Mr Ash told us he worked for various employers in a variety of occupations. He first obtained a job as a brickies’ labourer and remained in that job until he was invited by the then Commandant of the Australian Defence Force Academy to join the Academy. He joined as a storeman and functioned as a rugby coach while he held the storeman position.
43. Mr Ash told us that he first looked after the linen store at the Academy then took on maintenance of clerical chairs and whitegoods and conducted stock takes. He did no heavy work and delegated any such work to two subordinates. He stopped coaching in 1996 but continued as storeman. He stopped playing squash the following year and was having health problems such as shortness of breath and poor sleeping patterns. He also had back trouble but was not required to do any heavy lifting. Then, in 1999, all stores positions were taken over by a contractor and he was made redundant. This was his last remunerative position as he has had only a few days work here and there, being unable to continue, since his redundancy from the Academy.
Vocation, qualifications and experience
44. Applying the criteria set out in paragraph (a) of section 28 as to Mr Ash’s vocational, trade and professional skills, qualifications and experience, we note that Mr Ash undertook a range of physical work when he was young. In his last position as storeman he was not required to carry out any heavy work and was in fact unable to perform heavy work. Mr Ash mentioned his back trouble made heavy lifting impossible for him but he had subordinates to do this.
45. We find Mr Ash’s job as a storeman, with subordinates assisting him, was administrative. Mr Ash carried out this job from approximately 1986 to 1999. His only other occupation during this time was that of football coach but this was not his source of remuneration and he ceased coaching in 1996.
46. On balance, we find that the kinds of remunerative work which Mr Ash, with his particular skills, qualifications and experience, which for paragraph (b) of section 28 purposes, he might reasonably undertake, would be administrative in nature. He could reasonably be expected to carry out clerical work or work of a storeman if it did not involve heavy lifting. His experience as a storeman had been to keep track of stores, to arrange maintenance of certain goods and to audit the stores. His was a senior role with subordinates to carry out heavy work. He therefore is equipped by his last remunerative position to carry out administrative work, particularly in supervising, maintaining and auditing stores. He also might have turned this experience to other clerical and administrative positions. Mr Ash is not suited to any physical work even though he has tried out for various jobs involving physical tasks. We make this finding for the purposes of subparagraphs 24(1)(c), 24(2)(b) and section 28.
47. We further note that there is support in decided cases for the proposition that the remunerative work that the veteran is prevented from undertaking need not be the last remunerative work he undertook. The Full Federal Court in Sheehy v Repatriation Commission (1996) 66 FCR 569 per Wilcox, Whitlam, Lindgren JJ, suggested, at 574, that the remunerative work for subparagraph 24(1)(c) need not be shown as “successfully undertaken” or “effectively undertaken”, noting that in Banovich v Repatriation Commission (1986) 69 ALR 395 (‘Banovich’), “it was held that the same expression in the predecessor provision did not refer to ‘the particular job’ previously undertaken but a ‘type of work’ …”.
48. Their Honours went on to observe that in Starcevich, the word “continuing” in subparagraph 24(1)(c), does not require that the remunerative work the veteran is prevented from undertaking be the last remunerative work which he undertook.
Degree of impairment
49. Having found the only impairment relevant to Mr Ash’s search for work is his accepted mental impairment, we have examined the degree to which Mr Ash’s mental impairment has reduced his capacity to undertake remunerative work which he might otherwise have undertaken. This is as required by paragraph (c) of section 28.
50. Medical opinion before us is unanimous that Mr Ash cannot work in any capacity. We have already found that it has been PTSD and depression alone that prevented Mr Ash from continuing to undertake and pursue remunerative work that he had previously been undertaking. We are satisfied that Mr Ash’s mental impairment as a result of accepted injury or disease, or both, has reduced his capacity to undertake any kinds of remunerative work to nil.
was mr ash genuinely seeking to engage in remunerative employment?
51. Mr Ash told us that he was prepared to take on any kind of work and had looked for a wide variety of jobs. After the redundancy, he thought he had obtained work with a mine but the mine closed. He also had tried to obtain storeman work with supermarket chains but found the duties were not the same as those at the Defence Academy and required no administrative skills and meant he would have to do heavy lifting. He was not offered any such position when making enquiries. In our view, many of Mr Ash’s attempts to find work were unrealistic given the nature of the tasks he would have been required to perform but Mr Ash has tried to give anything a go.
52. Mr Ash has tried to explain his failure to find work as due to his physical difficulties. However, Mr Ash is not a psychiatrist and unqualified to explain the difficulties he is experiencing. He is not the best person to assess his own psychiatric impediments.
53. Mr Ash furnished a written statement and gave oral evidence about the last remunerative work that he was undertaking and his efforts since to find work. Mr Ash made a heartfelt opening statement that no one wanted to have a job more than he did but he had been unable to obtain a position. He said he wanted to work because ‘the shutters came down’ when he was unoccupied and his depression took over.
54. Mr Ash said that he had some gaps in memory which might have been due to some of the medication he took. After he was ‘involuntarily retired’ in 1999, Mr Ash thought he had lined up a job with a gold mine in Armidale but this did not eventuate. He told us he had put on weight, had continuing back problems, depression and a short temper. His weight ‘exploded’ and he was embarrassed about his appearance and became a recluse. His shortness of breath became worse and he suffered sleep apnoea and was admitted to hospital more than once. He spoke of heart problems and hypertension as well.
55. We observed that Mr Ash was no longer overweight at the time of the hearing and he gave evidence that he now weighed 79kg. He said that he had improved and had been looking for jobs again since he came out of hospital but was unsuccessful. He had tried to get work as a fencing contractor doing brush fencing but this did not work out as the potential employer did not do brush fencing and did not think Mr Ash could manage to do other fencing because of his disabilities. One job he obtained, which involved mowing lawns, did not work out because of his back. When questioned, Mr Ash conceded that he had shoulder problems and his left shoulder also made this task difficult to perform.
56. He said he also thought of working as a security guard and did a first aid course as a prerequisite but then realised that he would have to be prepared for unarmed combat which he could not do because of his neck and back. He also tried out for a job sorting tomatoes but when the employer learned he had Grover’s disease, would not employ him as his flaking skin might contaminate the tomatoes. A letter from ‘tomato exchange’ sets out that they were concerned about Mr Ash’s ability to work in heat, at heights, and doing heavy lifting. Mr Ash also tried to find work through an employment agency and had enquired personally at Coles and Woolworths.
57. The written statement from Mr Ash referred to his having broken his left foot playing football and having to wear different sized shoes, but he said that his left foot did not affect him apart from aching in cold weather. He also said that he used to have gout but no longer had problems with this. While he had been diagnosed with atrial fibrillation it caused no symptoms. He set out a history of his depressive illness and treatment and said in effect that he had improved but his back still prevented him from working. He mentioned that he had left shoulder problems, having injured his left shoulder in Malaya in 1969. He underwent rotator cuff repair in 2002 and said the shoulder was ‘no big deal’. Mr Ash felt he would be much better off working and wanted to work.
58. Mr Ash explained that he had not been able to find a job like his last one in the Defence Department because he had subordinates and had not needed to do the heavy part of that job. He said his shoulders would not prevent his performing an administrative job. In jobs that involved possibly similar administration to his defence job, his deafness was a drawback. As to storeman’s jobs, he was told he would not be suitable because lifting would be required. He said he could not stand being in an office 8 hours a day because of his PTSD or psychiatric problems. He said his left foot was not a problem.
59. When giving oral evidence about the extent of the restrictions his left shoulder caused him, Mr Ash was very frank. He told us that both his shoulders ached but the right shoulder did not really stop him from doing anything. He demonstrated the extent to which he could raise his left arm and told us that he could raise it to shoulder height but had no power in that shoulder. Also, he experienced pain in the shoulder when he raised the arm to shoulder height, and a ‘shooting pain’ if he tried to lift it any higher. He could hold a book and peel potatoes and hold a briefcase for a while but would eventually have to change hands.
60. When asked if he could lift objects with both hands, Mr Ash said he could not lift because of his back. He admitted that his left shoulder would affect his ability to mow a lawn although his back was the main problem. He conceded that he could not do tasks that involved lifting both hands above his head. This had meant he could not cope with tasks such as removing air filters from air conditioning systems so as to clean or replace them. When asked if he had difficulties with driving Mr Ash said he could drive a small car with no difficulty but that his left shoulder made it difficult to reverse a truck as he had to turn his body to look and use the left shoulder on its own. He also had found the left shoulder was a disability when he tried a paper run and had to throw the papers out the window with one hand at the same time as holding the wheel of the vehicle.
61. The aim of subparagraph 24(2)(b) of the Act was discussed by the Full Federal Court in Leane v Repatriation Commission (2004) 81 ALD 625 at [27]-[29] (‘Leane’), where the Court said:
The policy of s 24(2)(b) of the Act was explained in the speech on the second reading of the Bill for the insertion of that provision: see per Sackville J in Repatriation Commission v Sheehy (1995) 133 ALR 654 at 660-1; 39 ALD 286 at 292. In that speech the relevant Minister made the point that ‘special provision is made by the bill to cover veterans who are under 65 years of age, are unemployed, and are genuinely seeking to engage in remunerative work’.
The primary judge interpreted the word ‘seeking’ to mean ‘attempting to’ or ‘trying to’. This may be accepted. Such a meaning involves something more than a mere wish or hope. It requires that a claimant ‘do’ something. On the other hand the word ‘genuinely’ is used in the sense of ‘sincerely’ or ‘honestly’. It involves an assessment of the subjective intention or purpose of a claimant. What is required is that the claimant honestly be trying to engage in remunerative work.
It may be accepted that, in the ordinary course, a person in the position of the veteran would have difficulty in establishing that he or she was honestly trying to engage in remunerative work unless there were some ‘objective signs of active pursuit of remunerative work’. However, it would be wrong to turn the practical issue of how a person might establish his or her case into some legal pre-condition. …
62. In terms of the criteria suggested by the Full Court in Leane, we conclude from Mr Ash’s oral evidence and the supporting evidence he supplied from potential employers that he honestly wished to engage in remunerative work. He is unable to do this despite his best efforts. He made a reasonable assessment of his disabilities except for the full impact of his psychiatric condition on his chances of obtaining work. He has investigated various types of work but has not succeeded in identifying any suitable work because of the disabling effect of his psychiatric impairment. There is no doubt in our minds that Mr Ash has genuinely been searching for work as required in subparagraph 24(2)(b). His oral evidence made this painfully obvious. Counsel for the Commission accepted Mr Ash had pursued remunerative work with due vigour both before and after the assessment period commenced.
was mr ash’s incapacity from ptsd and major depression the substantial cause of his inability to obtain remunerative work?
63.
Subparagraph 24(2)(b) provides that the relevant incapacity must be the
substantial cause of the veteran’s inability to obtain remunerative work in which to engage. The Full Court in Banovich, left open the possibility that a veteran prevented from continuing to undertake remunerative work might be caused by an inability to obtain new employment. This was noted in Starcevich at 225, where Fox J said:
Banovich v Repatriation Commission (1986) 6 AAR 113; 69 ALR 395 (Banovich )was a case decided by the Full Court of this Court under Sch 2 of the Repatriation Act, which set out the entitlement to a TPI pension and was in terms very similar to s 24. It was there held that the 'work' need not be the last employment, or work generally, but related to a 'type' of work previously undertaken. It was also said that 'the loss referred to in subs (1)(b)(iii) may be caused either by a loss of existing employment or by an inability to obtain new employment'.
64. Dr Rosenthal made his position about Mr Ash’s incapacity clear when he told us that Mr Ash’s incapacity for work was ‘substantially defence-related’. We have already noted above that all of the medical evidence before us confirms that Mr Ash cannot work. Mr Ash made a reasonable assessment of his disabilities except for the full impact of his psychiatric condition on his chances of obtaining work. He has investigated various types of work but has not succeeded in identifying any suitable work because of the disabling effect of his psychiatric impairment. We have further found that Mr Ash cannot work due solely to his war-caused psychiatric disabilities.
65. Kiefel J considered the meaning of “the substantial cause” in Fox v Repatriation Commission (1997) 45 ALD 317 at 319-320, where her Honour said:
The words ‘the substantial cause’ require that, if the incapacity is not of itself productive of the inability to obtain work, it is nevertheless the operative factor which, more than any other, explains it. That something might be ‘a substantial cause’ has regard to the situation where there may be a number of factors operating which are of sufficient causal significance to qualify as ‘substantial’ (the phrase which was contained in the legislation dealt with in University of Tasmania v Cane (1994) 4 Tas R 156 at 163, to which I was referred in argument). The definite article in s 24(2) of the 1986 Act (compare Repatriation Act 1920 Sch 2, as amended in 1985), requires a stronger and more direct causal connection between the incapacity and the inability to obtain remunerative work.
66. In view of Mr Ash’s efforts to find work and his desire to work, when taken in light of our finding that his accepted conditions of depression and PTSD prevent his actually performing any work, we conclude that it is the same war-caused disabilities or impairments that are the substantial cause of his being unable to obtain work. As one of the doctors commented in a written report, an employer would immediately discern that Mr Ash was unable to perform remunerative work. Although he has presented himself to many potential employers, very few have given him an opportunity. We therefore are satisfied beyond reasonable doubt that Mr Ash’s war-caused psychiatric injuries are the substantial cause of his inability to obtain remunerative work. This means that he satisfies subsection 24(2) and the remaining requirement of subparagraph 24(1)(c) that, by reason of war-caused incapacity he is suffering a loss of salary or wages, or of earnings on his own account, that he would not be suffering if he were free of that incapacity.
conclusion
67. There is no disagreement and we find that Mr Ash satisfies subparagraph 24(1)(a) of the Act as to the degree of incapacity and is entitled to consideration for the special rate or intermediate rate.
68. We also find that Mr Ash is totally and permanently incapacitated due to his accepted psychiatric conditions in accordance with the test set out in subparagraph 24(1)(b). That is, we find that Mr Ash’s incapacity from war‑caused injury or war‑caused disease, being his psychiatric injury or disease, is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week.
69. Further, we find that Mr Ash by reason of incapacity from that war‑caused injury or war‑caused disease, alone, is prevented from continuing to undertake remunerative work that he was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that he would not be suffering if he were free of that injury or disease. This means he satisfies subparagraph 24(1)(c).
70. This means the reviewable decision of the Veterans’ Review Board of 1 November 2006 denying Mr Ash the special rate of disability pension was incorrect and should be set aside.
71. We further note that we may take into account evidence about his seeking work over the assessment period, which stretches from the date of application to the present: subsection 19(9). See Peacock v Repatriation Commission (2004) 40 AAR 143.
72. The earliest date of effect is 27 March 2006, which is the date Mr Ash applied for an increase in his disability pension to the special rate.
decision
73. The tribunal sets aside the decision under review and substitutes a decision that the applicant satisfies all of the requirements of subsection 24(1) of the Veterans’ Entitlements Act 1986 for receipt of the special rate of pension.
I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member and Dr Maxwell Thorpe, Member
Signed: .........................[Sgd]............................
Jennifer Wong, AssociateDate/s of Hearing 25 February 2009
Date of Decision 8 May 2009
Counsel for the Applicant Mr C Colborne
Solicitor for the Applicant KCI Lawyers
Solicitor for the Respondent Mr M Snell, Sparke Helmore Lawyers
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